deposition misconduct

We’ve written before about deposition conduct that crosses the line between valid advocacy and sanctionable misconduct. Here’s the latest example, in which a New York federal magistrate imposed sanctions on a defense lawyer for the City of New York, who interjected over 750 statements on the record, including more than 600 objections across 84 percent of the deposition transcript pages.

Deposition duel

The case arose after the plaintiff was arrested at work, held in jail and released the next day. The discovery trouble broke out at the deposition of one of the defendant police officers.

As described in the opinion, defense counsel’s conduct ran the gamut of obstructionist deposition tactics:

she instructed the witness not to answer at least 20 times;

she made speaking objections that suggested the answer to the witness — including objections that encouraged the witness to resist the question;

she objected to questions on the basis that they had already been asked and answered, even though they had not been answered;

she objected to questions on the basis of relevance, although that is an improper objection under Second Circuit law; and

she threatened to walk out of the deposition.

The lawyers called the judge’s chambers twice during the deposition. The first time, the judge’s law clerk instructed that objections should be short and concise “and there is really nothing else that needs to be said, other than ‘objection to form.'” The second time, the judge herself directed that any contested questions were simply to be marked in the transcript. But despite the calls to the court, defense counsel failed to curtail her objections.

Excessive objections = sanctionable conduct

The magistrate judge granted plaintiff’s motion for sanctions, ordered the city to pay reasonable attorneys’ fees and costs associated with the deposition, and gave plaintiff an additional shot at deposing the witness.

The judge noted that Federal Civil Rule 30(c)(2) mandates that deposition objections be stated concisely, “in a non-argumentative and non-suggestive manner,” and instructions not to answer are limited mainly to preserving privilege. Rule 30(d)(2) authorizes sanctions for impeding, delaying or frustrating the “fair examination of the deponent.” Bad faith is not necessary, and making an excessive number of unnecessary objections may itself constitute sanctionable conduct, as the Rules Advisory Committee notes provide.

The court held that defense counsel’s behavior “clearly impeded the progress of and unnecessarily extended the length of the deposition,” meriting sanctions.

Effect of Haeger ruling?

Curtailing deposition misconduct means that judges must be willing to penalize lawyers who cross the line. In April, the U.S. Supreme Court arguably made that prospect somewhat more remote, unanimously ruling that when based on the district court’s inherent authority to sanction bad faith discovery conduct, the amount of sanctions cannot be punitive, and must be tied to the costs and fees proximately resulting from the misconduct. That obviously limits the potential sting of sanctions for deposition misbehavior.

In the New York federal case, the basis of the court’s ruling was Rule 30(d), and not its inherent power, as in Haeger. And the court expressly said that its ruling didn’t require bad faith on the part of the sanctioned counsel. But the court still limited the amount of the sanction to the plaintiff’s fees and costs resulting from the deposition.

That is a measured response to conduct that derailed a deposition. In egregious cases, more is called for if the persistent problem of deposition misconduct is to be addressed effectively. Courts and bar associations can continue to extol the virtues of professionalism, but if more trial courts don’t become engaged and take forceful action against it, and courts of appeal don’t confirm that forceful action, discovery abuse will continue to undermine our justice system.

The Eighth Circuit got it wrong a couple weeks ago when it reversed the sanction that a district court had imposed on a lawyer for disruptive deposition conduct.

I have over 35 years of experience as a trial lawyer. One of the biggest frustrations in that practice over the years has always been opposing counsel intentionally attempting to disrupt and/or obstruct a deposition. That conduct comes in many flavors. I know it is trite to say and perhaps naïve to believe that trials should be a search for the truth. The truth, however, becomes more difficult, if not impossible sometimes, to find when opposing counsel is disrupting and/or obstructing a deposition.

So I read with great interest when a federal district judge sanctioned a lawyer for disruptive conduct in a deposition and ordered the lawyer to make a video about proper discovery procedure and provide it to her firm’s litigators. We previously reported on the decision here. The court explained the sanction in a well-written opinion, which should be required reading for all first year litigators-to-be.

Then I read, with some frustration, the Eighth Circuit Court of Appeals opinion overturning that sanction. The appeals court acknowledged that the district court had the authority to impose the sanction on its own accord, and also that preventing discovery abuse “depends in part on reducing the reluctance of attorneys to seek sanctions and of judges to impose them.”

But after setting forth the offending conduct — including the lawyer suggesting answers to the witness — and then citing the appropriate rules and precedent that completely justified the sanction imposed (see Rule 30(d)(2)) and the Advisory Committee notes (1993 Amendments)), the Eighth Circuit overturned the district court’s order on the basis that the sanction came too late and was not preceded by “advance notice.”

To justify its holding on notice, the court analyzed the case under the theory that the order to produce an educational video was in a class of the “most severe sanctions” possible — the kind that should require a district court to provide “clear notice” before imposing them. Really? Is this the kind of “severe sanction” that should require advance notice? Creating a video on proper discovery behavior is usually undertaken on a volunteer basis by conscientious lawyers intending to promote ethics and professionalism in their firms or communities.

The bottom line is that almost all lawyers, especially good lawyers, know the Rules of Procedure, including Rule 30(d)(2) on sanctions. If we are ever to make any progress in curing discovery abuse, then trial judges have to get involved and apply the sanctions as authorized by the Rules. And courts of appeal need to support, not thwart, them.

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